Partusch v. Peck
ORDER - The plaintiff shall have to on or before August 5, 2013, to file an amended complaint or show cause why this matter should not be dismissed for lack of subject matter jurisdiction. ( Amended Complaint due by 8/5/2013) Ordered by Magistrate Judge Thomas D. Thalken. (Copy mailed to pro se party)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AMY L. PECK and
PECK LAW FIRM, LLC,
This matter is before the court on the plaintiff’s Complaint (Filing No. 1). The
plaintiff filed the Complaint on June 21, 2013.
The plaintiff alleges:
Plaintiff represents that she has previously requested
changes with Peck Law Firm, LLC. And already filed
complaints, actions, charges against local, state, federal
agency, or court arising from her employment relationship
with the company, including the termination thereof. This
complaint will not in any way be construed as an admission
of guilt in any matter. Plaintiff seeks compensation for
damages inflicted upon self and minor children and property.
Damages result from but not limited to invasion of privacy,
breach of confidentiality, wrongful termination, lost wages,
emotional distress, damage to property, home and well
being, violation of child labor laws, health and safety.
Further discrimination includes racial profiling, harassment,
violations of civil rights, and reserve right to include more
claims at trial. Due to the nature of these claims, plaintiff
further motions court to move immediately to trial. Plaintiff
has been directed to multiple agencies, websites, locations,
and people with no formal resolutions.
Filing No. 1 - Complaint p. 2-3.
Additionally, the plaintiff alleges she exhausted administrative procedures by
presenting her claims on March 18, 2013, April 15, 2013, and April 17, 2013, to a state
or federal governmental agency. Id. at 5. The plaintiff does not state which agency or
the results of those procedures. See id. The complaint lists jurisdiction is based on (1)
United States or a federal official or agency is a party, (2) Claim arises under the
Constitution, laws or treaties of the United States, (3) Violation of civil rights, (4)
Employment discrimination, and (5) Other basis for jurisdiction in federal court (without
explanation). Id. at 4.
“A federal court not only has the power but also the obligation at any time to
inquire into jurisdiction whenever the possibility that jurisdiction does not exist arises.”
Fitzgerald v. Seaboard Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir. 1985) (citing
Philbrook v. Glodgett, 421 U.S. 707 (1975)); see Amnesty Int’l, USA v. Battle, 559
F.3d 1170, 1176-77 (11th Cir. 2009). “If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).
“A party invoking federal jurisdiction has the burden of establishing that he has the right
to assert his claim in federal court.” 281 Care Comm. v. Arneson, 638 F.3d 621, 627
(8th Cir. 2011); Knudson v. Sys. Painters, Inc., 634 F.3d 968, 975 (8th Cir. 2011)
(noting burden of establishing federal subject matter jurisdiction is by a preponderance
of the evidence); Keene Corp. v. United States, 508 U.S. 200, 207-08 (1993) (noting
“subject-matter jurisdiction turns on the facts upon filing” in federal court).
matter jurisdiction is a proper where a plaintiff asserts a “non-frivolous claim of a right or
remedy under a federal statute,” commonly referred to as “federal question” jurisdiction.
Northwest South Dakota Prod. Credit Ass’n v. Smith, 784 F.2d 323, 325 (8th Cir.
Pro se plaintiffs must set forth enough factual allegations to “nudge[ ] their claims
across the line from conceivable to plausible,” or “their complaint must be dismissed” for
failing to state a claim upon which relief can be granted.
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937,
1950 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”). Regardless of whether a plaintiff is represented or is appearing
pro se, the plaintiff’s complaint must allege specific facts sufficient to state a claim. See
Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). However, a pro se plaintiff’s
allegations must be construed liberally.
Burke v. North Dakota Dep’t of Corr. &
Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations omitted).
The court finds the plaintiff’s Complaint is insufficient to allow the court to
determine whether this court has jurisdiction.
The plaintiff’s Complaint states the
“United States or a federal official or agency is a party” but does not list any such entity
as a defendant. See Filing No. 1 - Complaint p. 4. Similarly the plaintiff’s Complaint
does not set forth sufficient factual basis to determine which, if any, other basis for
jurisdiction exists. It is unclear whether the plaintiff alleges she was employed with the
defendants or with some other “company.”
There are insufficient allegations to
determine whether specific actions taken by the defendants violate any constitutional
right or support a claim under any other federal statute. Although the plaintiff alleges
she was wrongfully terminated and her privacy and child labor laws were violated,
among other things, these allegations are conclusory statements. The plaintiff fails to
state the facts showing who was involved or what underlying conduct may support a
federal legal claim against the current defendants. Other relevant facts may include the
plaintiff’s age and race and the circumstances surrounding her termination from
The plaintiff states, “[f]urther discrimination includes racial profiling,
harassment, [and] violations of civil rights,” but does not state who suffered
discrimination, who engaged in discriminatory conduct, and the circumstances
surrounding and a detailed description of the conduct. Even at this stage, the plaintiff
has the burden of pleading “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
complaint lacks any factual content and is therefore insufficient to grant this court
jurisdiction. Upon consideration,
IT IS ORDERED:
The plaintiff shall have to on or before August 5, 2013, to file an amended
complaint or show cause why this matter should not be dismissed for lack of subject
Dated this 2nd day of July, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge
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